THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as In re Main ,
4 FSM Intrm. 255 (App. 1990)

[4 FSM Intrm. 255]

In re petition of
GARRY MAIN,
for Writ of Mandamus or
for Writ of Prohibition

APP. NO. C1-1990
(Crim. Case No. 1989-1508)

OPINION

Argued:  April 27, 1990
Decided:  July 18, 1990

Before:
     Hon. Edward C. King, Chief Justice, FSM Supreme Court
     Hon. Jesus C. Borja, Temporary Associate Justice, FSM Supreme Court*
     Hon. John Petewon, Temporary Associate Justice, FSM Supreme Court**

     *Associate Justice, Supreme Court of the Commonwealth of the Northern Mariana Islands, on this Court by designation for this case
     **Associate Justice, Chuuk State Court, on this Court by designation for this case

APPEARANCES:
For Petitioner:                   Michael K. Powell
                                            Office of the Public Defender
                                            Federated States of Micronesia
                                            Palikir, Pohnpei  FM  96941

For Respondent:               R. Barrie Michelsen
                                            Attorney-at-Law
                                            P.O. Box 519
                                            Pohnpei, FM  96941

[4 FSM Intrm. 256]

For FSM Government:     Ready Johnny (argued)
                                            Assistant Attorney General
                                            Federated States of Micronesia
                                            Weno, Chuuk  FM  96942

                                            Steven Pixley (on the brief)
                                            Assistant Attorney General
                                            Office of the Attorney General
                                            Federated States of Micronesia
                                            Palikir, Pohnpei  96941
 
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HEADNOTES
Judgments; Appeal and Certiorari
     Generally, an appeal from a ruling of a trial judge is to be taken only after completion of all trial proceedings, upon issuance of a final judgment.  In re Main, 4 FSM Intrm. 255, 257 (App. 1990).

Mandamus; Appeal and Certiorari
     The finality requirement and its underlying rationale mandate appellate court restraint and preclude issuance of writs of mandamus and prohibition on an interlocutory basis except in those rare and exceptional circumstances when the precise requirements for issuance of the writ are met and the appellate court in its discretion determines that immediate relief is called for.  In re Main, 4 FSM Intrm. 255, 258 (App. 1990).

Criminal Law and Procedure - Pleas
     A duty imposed on the trial court by Rule 11(e)(5) of the FSM Rules of Criminal Procedure to protect the defendant by assuring that there is a factual basis for the plea, may be breached only if the trial court should "enter a judgment" without finding a factual basis.  In re Main, 4 FSM Intrm. 255, 259 (App. 1990).

Courts - Recusal
     The normal situation in which recusal may be required is when a judge's extrajudicial knowledge, relationship or dealings with a party or the judge's own personal or financial interests, might be such as to cause a reasonable person to question whether the judge could preside over and decide a particular case impartiality.  In re Main, 4 FSM Intrm. 255, 260 (App. 1990).

Courts - Recusal
     Recusal of a trial judge from presiding over a criminal trial, because he has presided over a failed effort to end the case through a guilty plea, is not automatic, since bias, to be disqualifying, generally must stem from an extrajudicial source.  In re Main, 4 FSM Intrm. 255, 260 (App. 1990).
 
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[4 FSM Intrm. 257]

COURT'S OPINION
     EDWARD C. KING, Chief Justice:
     Petitioner, Garry Main, charged with murder before the trial division of the FSM Supreme Court in Chuuk, entered into a plea agreement with the government whereby he was to plead guilty to the lesser charge of manslaughter. The trial court, after hearing the government's reasons for entering into the plea agreement, rejected the agreement, stating that he could find no factual basis for such a plea.

     Mr. Main has responded by petitioning this Court for writ of mandamus or prohibition.  In particular, he asks that we require the trial court to "seriously consider" the plea bargain or to state a "good reason" for its refusal to accept the manslaughter plea.

     He also contends that the trial judge who presided over the hearing on the plea agreement should be required to recuse himself because of the information received during that hearing.

     Because this was an interlocutory proceeding requiring a rapid response, we have already issued our order denying the petition.  This opinion is now issued to explain our reasons for denial.

I.  Legal Analysis
A.  The Finality Requirement
     The well-established general rule is that appeals from rulings of a trial judge may be taken only after completion of all the trial proceedings, upon issuance of a final judgment.

     This finality rule is supported by many reasons, most having to do with judicial efficiency.  Through the course of trial proceedings, a trial court may make many evidentiary and other rulings which are arguably incorrect.  If an immediate appeal would lie from each such ruling, the trial proceedings could be constantly interrupted and ultimate resolution of the case forestalled.  A single appeal consolidating all alleged errors also minimizes the burden upon the litigants and the appellate court by eliminating the need for more than one set of records, briefs, and arguments in an individual case.  Of course, if the party who wishes to challenge the trial court ruling is the ultimate victor, if the parties settle, or if the trial court later corrects its own error, appellate review will prove unnecessary.

     The requirement of finality also helps to insure the correct disposition of the merits.  After the proceedings below are complete, the appellate court is in a position to assess the wisdom of particular interlocutory orders with heightened perspective.

     Finally, to allow an immediate appeal from every order to which an objection is lodged might reduce respect for the authority of the trial judge

[4 FSM Intrm. 258]

in a way that hampers the administration of justice.  Note, 75 Harv. L. Rev. 351, 352 (1961).

     As with most strong and well-developed rules of the law, there are exceptions. In extraordinary circumstances, this court may grant a writ of prohibition or mandamus to correct trial court decisions before final judgment.  This most typically may occur when the particular trial court decision is essentially jurisdictional and may frustrate the ultimate exercise of appellate jurisdiction, irreparably denying a party of rights.  Thus, a writ of prohibition may be used to set aside a trial court decision which would have required defendants to stand trial on charges which the appellate court finds lie outside the trial court's jurisdiction.  Jonas v. FSM, 1 FSM Intrm. 322 (App. 1983).  Conversely, a writ may be employed to require a trial court to exercise jurisdiction when its proposed transfer of the litigation to another court might have deprived the appellate court of any opportunity to review that jurisdictional decision.  In re Otokichy, 1 FSM Intrm. 183 (App. 1982).

     Yet, these extraordinary writs are to be granted only under carefully prescribed circumstances, lest the drastic power to issue writs negate the policies calling for finality of trial court proceedings before appeal.  The finality requirement and its underlying rationale mandate appellate court restraint and preclude issuance even of writs of mandamus and prohibition on an interlocutory basis except in those rare and exceptional circumstances when the precise requirements for issuance of the writ are met and the appellate court in its discretion determines that immediate relief is called for.

B.  Mandamus and Prohibition
     l.  Clear duty - "The writ of mandamus is an extraordinary remedy, the object of which is not to cure a mere legal error or to serve as a substitute for appeal, but to require an official to carry out a clear nondiscretionary duty."  In re Raitoun, 1 FSM Intrm. 561 (App. 1984).  "[T]he traditional use of writs of mandamus is to compel public officials to perform some clear duty which is ministerial in nature, that is, which is not subject to the discretion or judgment of the official."  Nix v. Ehmes, 1 FSM Intrm. 114, 118 (Pon. 1982).  The writ of prohibition, like mandamus, is a coercive writ, the primary difference between the two being that mandamus may be used to require an official to carry out some affirmative act while prohibition is used to direct a judge to cease acting.  D. Dobbs, Remedies 112 (1973).  Yet they are similar in that each may only force a ministerial act or prevent a clear abuse of power and neither may be used to test or overrule a judge's exercise of discretion.  Id.  A clear duty which is being violated is a prerequisite to the issuance of either writ.

     The petitioner here points to the following language in the FSM Rules of Criminal Procedure as establishing a clear duty which has been violated by the trial judge.  "Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is factual basis for the plea."  FSM Crim. R.

[4 FSM Intrm. 259]

11(e)(5).1

     Mr. Main argues that the quoted language was intended only to protect a defendant from pleading guilty to a charge "without realizing that his conduct does not actually fall within the charge."  3A C. Wright, Federal Practice and Procedure 450 (1982).  Thus, he contends that the court clearly erred by employing the Rule 11(e)(5) factual basis test for a purpose other than to protect the defendant.

     Even if correct, Mr. Main's interpretation would not establish any clear, nondiscretionary duty which may have been breached by the trial court and his argument based upon Rule 11(e)(5) therefore would not justify a writ of mandamus.

     If indeed Rule 11(e)(5) imposes a duty on the trial court to protect the defendant by assuring that there is a factual basis for the plea, that duty could be breached only if the trial court should "enter a judgment" without finding a factual basis.  Here, the trial court refused to accept the plea so the Rule 11(e)(5) duty to find a factual basis for the plea did not arise.

     2.  The "good reason" requirement - Mr. Main also contends that the trial court was under a duty not to reject the guilty plea "except for good reason".  At the outset, we note that Rule 11 contains no language requiring the court to give a "good reason" for rejecting a guilty plea.  To the contrary, Rule 11(e)(1), which authorizes parties to enter into plea agreements, implies the absence of such a duty, saying, "The court shall not participate in discussions leading to such plea agreements nor be bound thereby."

     The reliance of petitioner and the dissent upon Nix v. Ehmes, 1 FSM Intrm. 114, 126 (Pon. 1982), is misplaced.  Nix discussed the broad discretion available to the government in deciding whether to prosecute a particular case. Once a criminal action is filed with the court, the situation changes.  From then on, independent judicial obligations to exercise discretion attach, and these counterbalance and modify the prosecutional discretion which existed before the case was filed.  The interests of the defendant and of the government arguably may be such as to require good faith consideration by the

[4 FSM Intrm. 260]

trial court of a tendered plea agreement,2 but a "good reason" requirement would not serve well as a standard for extraordinary writs.  Except in rare cases, the emphasis under such a test would not be whether a reason must be given but whether the reason is a "good" one.

     This case illustrates the problem well.  The petitioner says he wants only to require the trial court to give a reason for refusal to accept the plea.  The difficulty with this request is that the trial judge did give a reason, saying that there was no factual basis for the plea.  This case then does not present that rarity -- a flat, stubborn refusal to give any reason -- that might justify a writ of mandamus.  The petitioner is necessarily reduced to arguing just that the trial judge's reason was wrong.  As we have explained, that kind of issue must be pursued on appeal, not on an interlocutory basis pursuant to petition for writ of mandamus.3
 
C.  Recusal
     We have also reviewed carefully petitioner's contention that the trial judge should be compelled to recuse himself.

[4 FSM Intrm. 261]

      The normal situation in which recusal may be required is when a judge's extrajudicial knowledge, relationship or dealings with a party, or the judge's own personal or financial interests, might be such as to cause a reasonable person to question whether the judge could preside over and decide a particular case impartially.  4 F.S.M.C. 124.

     The petition and memo, supported by an affidavit of Daniel Maloney, counsel for Mr. Main in the trial proceedings, refer to a statement by the  trial judge suggesting that rumors referred to by counsel concerning the case had been heard before.  From that, petitioner inferred, and contended, that the trial judge must have received information extrajudicially and that this gave rise to reasonable questions about the trial judge's impartiality.  However, we understand that the petitioner now acknowledges that Mr. Maloney's February 14, 1990 affidavit was misleading because he failed to realize that the trial judge was saying that he had heard the rumors from counsel themselves at a time when both counsel were present.  In any event, based upon our review of the entire record and especially the February 19 hearing, Tr. 38-40, we find no basis in the record for a belief that the trial judge had received information about the case from extrajudicial sources.

     The only remaining contention is that the trial judge should recuse himself because of representations made by the prosecution, during the February 1 plea agreement hearing.

     As a general proposition, bias, to be disqualifying, must stem from an extrajudicial source, and information received about a case in the course of hearings on that case can not be used as a ground for disqualifying the judge. FSM v. Jonas (II), 1 FSM Intrm. 306, 317-20 (Pon. 1983).

     It is true that a judge who, as the designated trier of fact, finds himself actually biased against a particular party before a trial begins is under an ethical obligation to recuse himself.  Jonas (II) at 320 n.1.  However, there is no rule requiring automatic recusal of a judge because he has presided over a hearing on a failed plea agreement.  This normally falls within the discretion of the trial judge.  FSM v. Skilling, 1 FSM Intrm. 464, 483-84 (Kos. 1984), aff'd, 2 FSM Intrm. 209 (App. 1986).

     In this case, we note that the trial judge proceeded cautiously, and no

[4 FSM Intrm. 262]

admissions were made by the defendant or his counsel.  Instead of addressing questions to the defendant as he had been preparing to do, the trial judge directed his inquiry to counsel for the government.  In response, the court heard the government's description of what it contended had happened the night of the victim's death.  Tr. 3-8.  This oral statement was akin to what counsel might be expected to say during an opening statement at the beginning of trial.  The principal departures were the government's statements that the defendant had admitted pulling out a knife and attempting to help his friend who was then being held by the victim.

     These representations should be considered in context.  Long before the hearing on the plea agreement the government had filed with the court, in support of the information, an affidavit saying that the defendant had given a "statement indicating that he stabbed" the victim.  Also before the plea agreement hearing, the trial judge had presided over a hearing at which a statement of the defendant was suppressed.  If those factors were not sufficient to mandate recusal, and the defense does not contend that they were, it seems to follow that nothing the trial judge heard in the plea agreement hearing should be held automatically to disqualify him.  Under these circumstances, the question of recusal lies within the sound discretion of the trial judge and is not subject to overruling through an extraordinary writ.

Conclusion
     The petition is denied and the trial court may proceed with this litigation.

 

DISSENTING OPINION
JOHN PETEWON, Associate Justice:
     The trial court below refused to accept a tendered plea, negotiated by counsel for the prosecution and defense, to a charge of manslaughter, thereby requiring the case to go to trial on a charge of murder.

     In refusing to accept the plea the trial court stated, "the rules of court require if I accept the plea I have to find there's a factual basis for the plea.  And I can't find that."  (Partial Transcript: page 1, line 19-21).  The court below then refused to either specify what it found factually lacking or, having ruled on the matter, to allow presentation of additional factual circumstance and information offered in support of a factual basis for the tendered plea.  The bald assertion of no factual basis, by itself, is devoid of explanation and therefore is as deficient a reason for refusing to accept the plea as it would have been were the judge below to have given no reason at all.  The respondent court thereby ran afoul of the requirement of United States v. Ammidown, 497 F.2d 615, 625 (D.C. Cir. 1973), that "the judge's statement or opinion must identify the particular interest that leads him to require an unwilling defendant and prosecution to go to trial."

     FSM Rule of Criminal Procedure 11(e)(5), taken verbatim from the

[4 FSM Intrm. 263]

United States Federal Rules of Criminal Procedure Rule 11(f), addresses the factual basis for pleas: "Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea."

     The advisory committee in amending the original Rule 1966 made clear that the intent of Rule 11(f) was to protect defendants from pleading unfounded charges, not applied here, where the trial division ruling held defendant to face higher charges than contemplated by the plea agreement.

     Respondent now acknowledges the existence of a factual basis for the plea. (Opposition to Writ: page 7, line 6-10; page 8, line 9-13).  Paraphrasing In Re Arvedon, 523 F.2d 914, 916 (1st Cir. 1975), were we to sanction a court's refusal to accept a guilty plea in a proceeding pursuant to Rule 11(f) solely because of lack of a factual basis where all parties now agree that a factual basis for the plea does exist, we would in effect be countenancing judicial suspension of that rule.  This is a violation of a clear, nondiscretionary duty.

     Notwithstanding the trial court's misapplication of Rule 11(e)(5), respondent speculates that the real reason for the court's ruling was its disagreement with the government's decision to amend the original charge of murder to the lesser included offense of manslaughter, and that such reason justified rejecting the plea agreement.

     Accepting for sake of argument that this reason in fact prompted the lower court's ruling, pursuant to Nix v. Ehmes, 1 FSM Intrm. 114, 126 (Pon. 1982), unless there is reason to believe the government is motivated by some "corrupt motives or influences, or popular prejudice or mere conformity to a general sentiment of the people," there is no basis for the judiciary to interfere with the prosecution's discretion.  The discretion is to "be overruled only in the most extraordinary circumstances."  Id.

     The court below presented no evidence addressing prosecutorial "corruption" etc., nor evidence of "extraordinary circumstances" warranting refusal to accept the plea.
 
      Whether the trial court's refusal to accept the plea was based on misunderstanding of Rule 11(e)(5) or on a simple disapproval of charge reduction, the ruling was in error.

     United States law recognizes courts have a duty not to reject guilty pleas without "good reason".  McCoy v. United States, 363 F.2d 306 (D.C. Cir. 1966). Further, that "good reason" must be on the record, and failure to state a good reason is an abuse of discretion.  United States v. Martinez, 486 F.2d 15 (5th Cir. 1973).

     In the instant case the record contains no good reason for refusal to accept the plea, thereby warranting the issuance of a writ of mandamus.  In Arvedon, the court found that a baseless rejection of a guilty plea was

[4 FSM Intrm. 264]

amenable to the remedy of a writ and in fact issued a writ directing the lower court to seriously consider the tendered plea.

     Under the Federated States of Micronesia law, courts have the authority to issue writs of mandamus.  4 F.S.M.C. 117.  In the Federated States of Micronesia, the writ of mandamus should be granted only under exceptional circumstances.

     The writ of mandamus is an extraordinary remedy, the object of which is not to cure a mere legal error or serve as a substitute for appeal, but to require an official to carry out a clear, nondiscretionary duty.

     Only where special circumstances render the matter rare and exceptional should the appellate division issue a writ to alter the conduct of a trial judge before the trial judge has completed proceedings and reached a final decision.
 
In re Raitoun, 1 FSM Intrm. 561, 563 (App. 1984).

     The following "special circumstances" render this case sufficiently "rare and exceptional" to make appropriate the remedy of a writ.

     First, this case is one of first impression.  No decision exists in the Appellate Division of the Supreme Court of the Federated States of Micronesia delineating the responsibilities of the trial judge under FSM Criminal Rule 11(e)(5).  Further, there is at least one other case which has beenpostponed pending resolution of these "Garry Main" issues.  The prosecution, defense and trial court are looking to the Appellate Division for guidelines.

     A writ is appropriate in such a case of first impression.  In re International Business Machines Corp., 687 F.2d 591 (2d Cir. 1982).

     Arvedon also acknowledged as a factor contributing to the exercise of supervisory mandamus the fact that the petition, as in the instant case, raised a question of first impression concerning Rule 11.

     Second, the prosecution has joined in the request for a writ.  This proceeding is the only meaningful opportunity for the prosecution to obtain a hearing.  Should Garry Main be tried and acquitted, the prosecution has no appeal.  FSM Const. art. IV, 7; United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 65 (1987).  The prosecution has requested guidance from this court harmonizing the responsibilities of the trial court and the government with respect to pleas.  I would grant the writ with instruction to the trial court providing such guidance.

     Third, the petitioner, Garry Main, would be entitled to appeal if he was convicted.  Among the issues which could be raised would be whether the tendered plea offer was properly rejected by the trial division.  All parties

[4 FSM Intrm. 265]

now agree there is on the record a factual basis for a plea to manslaughter.  This fact, when considered in conjunction with respondent's failure to provide good reason for overruling the prosecution's discretion regarding charge reduction suggests petitioner would enjoy a meritorious appeal.  Consequently, a full homicide trial will be needlessly time consuming and scarce judicial resources will have been squandered before the petitioner is allowed a meaningful hearing on an issue where petitioner's legal position is more likely than not to be upheld. See United States v. Gaskins, 485 F.2d 1046 (D.C. Cir. 1973).

     Fourth, there is a suggestion that there exists a separate but unstated basis for rejecting the plea agreement and this unstated reason is a "perfectly valid reason to reject the plea agreement."  (Opposition to Writ: page 8, lines 14-23). The record is clear that the court rejected the proposed plea agreement because of a lack of factual basis.  I am unwilling to assume that the trial court articulated a specific reason for rejecting the plea while harboring a separate yet concealed basis for the rejection.  It seems extraordinary that the majority would deny the writ based upon speculation as to what the trial court left unsaid, but really meant in its rejection.

     If a trial court is able to reject pleas sub silentio the government will be unable to effectuate its policy decisions regarding plea bargains, thereby raising serious implications for the doctrine of separation of powers and threatening the continued vitality of plea bargains in the national court.

     The trial court violated a clear, nondiscretionary duty.  A writ of mandamus is the proper remedy.  In re Arvedon.  The circumstances are rare and exceptional. Interests of providing timely guidance for questions of first impression, providing meaningful opportunity to address the government's concern, avoiding wasteful and unnecessary litigation and harmonizing the role of the executive and judicial branches in plea bargaining dictate the granting of the writ.

     The petition for writ of mandamus should have been granted with respect to petitioner's prayer to compel respondent "to 'seriously consider' the plea or in the alternative make findings on the record that the government was acting in bad faith in this situation."

     For the reasons given, I respectfully dissent.

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Footnotes:
 
1.  Although the petitioner cites FSM Crim. R. 11(f) as containing the quoted language, those words are now in our Rule 11(e)(5).  Our references throughout this opinion are to the rules in the form issued on April 25, 1990.  See GCO 1990-2.  These rules by their terms apply to "all criminal proceedings now pending" and will govern the conduct of the trial court as the litigation proceeds at the trial level.
 
2.  This is, however, by no means a uniformly accepted proposition.  See United States v. Moore, 637 F.2d 1194 (8th Cir. 1981) (a district court is  under no duty to consider a negotiated plea agreement); In re Yielding, 599 F.2d 251 (8th Cir. 1979); United States v. Jackson, 563 F.2d 1145, 1147 (4th Cir. 1977) ("Rule [11] leaves to the court the option of whether it will accept or reject the plea agreement.") See also United States v. Ocanas, 628 F.2d 353, 358 (5th Cir. 1980) ("Under Rule 11, the trial court clearly retains discretion in accepting or rejecting plea bargains."); United States v. Adams, 634 F.2d 830, 835 (5th Cir. 1981) ("The prohibition stated in Rule 11(e)(1) [against the trial court entering into plea agreement discussions] is necessarily absolute because of what is required of the judge once an agreement is reached: the court must decide for itself whether to accept or reject the plea bargain.").
 
3.  Since our rules of criminal and appellate procedure are based in great part upon those of the United States federal court system, it bears mention that United States' courts have consistently held that a trial court's refusal to accept a plea agreement is not subject to overruling by writ of mandamus or prohibition.  United States v. Carrigan, 778 F.2d 1454, 1467 (10th Cir. 1985) ("[T]he authority to accept or reject a plea bargain agreement under Rule 11(e) is confined almost entirely to the trial court's discretion.  A district court is under no duty to consider a plea agreement or to accept or reject it....'Where a matter is committed to discretion, it cannot be said that a litigant's right to a particular result is "clear and indisputable."'"); In re Yielding, 599 F.2d 251, 253 (8th Cir. 1979)("Since Rule 11(e)(2) gives the court the right to reject the plea bargain, it would be a useless act to require a district judge to listen to the agreement when he has already decided to exercise his right of rejection....").  Petitioner has directed us to only one exception.  That case, In re Arvedon, 523 F.2d 914 (1st Cir. 1975), is distinguishable. The Arvedon court terminated the plea hearing before examining into either the factual basis for the plea or the petitioner's belief as to his guilt or innocence.  In Mr. Main's case, the trial court heard a full explanation of the factual basis for the proposed plea.

     Moreover, the appellate court's decision in Arvedon was grounded upon its finding that the trial court had plainly misapplied Rule 20 of the Federal Rules of Criminal Procedure, a rule which is not at issue before this Court.